1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.11135 OF 2011(MV)
C/w.
M.F.A.No.484 OF 2012 (MV)
IN MFA 11135/2011
BETWEEN:
Sri. A.Akash,
S/o C.S.Armugam,
Aged about 21 years,
R/at No.1, 5th Cross,
1st Main Road, U.A.S. Layout,
Behind Ganesh Temple,
Sanjayanagar, Bangalore-94. ... Appellant
(By Sri.Sripad V.Shastri., Advocate)
AND:
1. Bajaj Allianz Gen. Insu. Co. Ltd.,
No.105A/107A, C.S.Plaza,
136, Residence Cross Road,
Bangalore-25,
By its Manager.
2. Mr. G. Aboobakar,
S/o Abdulla, Major,
R/at ALFATEH H, No.15-17,
919/2, 3rd Cross,
Lower Bendoor,
Mangalore-575002.
2
3. The Executive Engineer,
Stores & Workshop division
Bengalore Mahanagara Palike
Bangalore. ... Respondents
(By Smt. H.R.Renuka, Advocate for R1:
Notice to R2 & R3 are dispensed with
v/o dated:13.11.2013)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:07.07.2011 passed
in MVC No.1838 /2006 on the file of Principal MACT & Chief
Judge, Court of Small Causes, Bangalore partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
IN MFA 484/2012
BETWEEN:
Mr. G. Aboobakar,
Aged about 69 years
S/o Abdulla,
R/at ALFATEH H. No.15-17,
919/2, 3rd Cross,
Lower Bendoor, Mangalore-575 002. ... Appellant
(By Sri. Giridhar H., Advocate for
Bopanna & Giri Advocates)
AND:
1. Sri. A.Akash,
Aged about 21 years,
S/o Sri.Armugam,
R/at No.1, 5th Cross,
1st Main Road, U.A.S. Layout,
Behind Ganesh Temple,
Sanjayanagar, Bangalore-560 094.
3
2. Bajaj Alliance General Insurance
Company Limited,
No.1054/107A, C.S.Plaza,
136, Residence Cross Road,
Bangalore-25,
Policy issued by its branch office,
No.107, Crystal Arc., I Floor,
Balmatta Road, Mangalore-575001.
Represented by its
Branch Manager.
3. The Executive Engineer,
Stores & Workshop Division,
Bangalore Mahangara Palike,
Bangalore-560 001.
... Respondents
(By Sri. Shripad V Shastri, Advocate for R1:
Smt. H.R.Renuka, Advocate for R2:
Sri. M.R.Vijay Kumar, Advocate for
Sri. C.T. Parameshwarappa, Advocate for R3(absent))
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated: 07.07.2011
passed in MVC No.1838/2006 on the file of Principal MACT,
Chief Judge, Court of Small Causes Bangalore, awarding a
compensation of Rs.76,062/- with interest @ 6% p.a. from
the date of petition till realization.
These MFAs, coming on for hearing, through video
conference, this day, this Court, delivered the following:
JUDGMENT
These two appeals are filed challenging the judgment and award dated 07.07.2011 passed by the MACT & Chief Judge, Court of Small Causes at 4 Bangalore in MVC No.1838/2006. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.
2. The claimant has filed MFA No.11135/2011 seeking enhancement of the compensation and the owner of the offending vehicle has filed MFA No.484/2012 challenging the pay and recovery order passed by the Tribunal.
3. The brief facts of the case are that on 10.01.2006 the claimant was proceeding as a pillion rider on the motorcycle bearing Registration No.KA- 19/S-9993. When they reached near G.S.F.Circle, Subramanyanagar, the rider of the motorcycle rode the same at a high speed and in a rash and negligent manner dashed against the tanker lorry bearing Registration No.KA-01/8850 and caused accident. As 5 a result, he sustained injuries and immediately he was shifted to the hospital.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was a student of PUC and because of injuries he was hospitalized and suffered lot of pain. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.
4. On service of notice, the respondent Nos.1, 2 and 3 filed separate written statements in which the averments made in the petition were denied. It was pleaded by respondent No.1 that the rider of the motorcycle was not holding a valid and effective driving licence to drive the said vehicle and the owner 6 of the vehicle has committed breach of policy conditions. Issuance of policy was admitted.
It was pleaded by respondent No.2 that the accident occurred due to rash and negligent driving of the offending vehicle. It was further pleaded that the motorcycle is duly insured and the insurance company is liable to pay the compensation.
It was pleaded by respondent No.3 that the accident occurred due to the rash and negligent riding of the rider of the motorcycle and there were two pillion riders in the motorcycle and there is no negligence of the part of the driver of the lorry. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition.
7
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Mali Manjunath as PW-2 and got marked 13 documents as Exs.P1 to P13. On the other hand, the respondents have examined an officer of the insurance company as RW-1 and the owner of the motorcycle as RW-2 and got marked 2 documents as Exs.R1 and R2. After appreciation of the evidence, the Tribunal awarded compensation of Rs.76,062/- with interest at 6% per annum and held that there is negligence on the part of the rider of the motorcycle and as there were two pillion riders the owner of the motorcycle has committed breach of policy conditions, exonerated the insurance company and directed the owner of the motorcycle to pay the compensation. Being aggrieved, both these appeals are filed.
8
6. The learned counsel for the insured has contended that the accident occurred due to the rash and negligent driving of the driver of the tanker lorry. But the Tribunal has held that there is negligence on the part of the rider of the motorcycle and the insurance company was exonerated from the liability only on the ground that three persons were proceeding on the motorcycle and since the owner of the motorcycle has violated the policy conditions, directed the owner of the motorcycle to pay the compensation and the same is contrary to the materials available on record. In support of his contentions he relied on the judgment of the Hon'ble Apex Court in the case of LAKSHMICHAND vs. RELIANCE GENERAL INSURANCE CO. LTD. reported in 2016 ACJ 551.
9
7. The learned counsel appearing for the insurance company has raised the following contentions:
Firstly, the accident occurred due to the rash and negligent riding of the rider of the motorcycle and three persons were traveling in the motorcycle and they have violated the policy conditions. Since the insured has violated the policy conditions, the Tribunal has rightly fastened the liability on the insured.
Secondly, the treated doctor has not been examined to prove the injuries suffered by the claimant and the overall compensation granted by the Tribunal is just and reasonable. Hence, he sought for dismissal of both the appeals.
8. The learned counsel appearing for the claimant has contended that at the time of the accident the claimant was aged about 16 years and he was a student of PUC. Due to the accident he suffered 10 head injury and other grievous injuries, the compensation awarded by the Tribunal is on the lower side. Hence, he sought for enhancement of compensation.
9. Heard the learned counsel for the parties. Perused the original records. Judgment and award passed by the Tribunal.
10. It is not in dispute that the claimant sustained injuries in the accident occurred on 10.01.2006. The Tribunal on the basis of the evidence of the parties and the materials available on record has rightly held that the accident occurred due to rash and negligent riding of the rider of the motorcycle, but the Tribunal exonerated the insurance company only on the ground that three persons were travelling in the motorcycle and they have violated the policy conditions. It is not the finding of the Tribunal that 11 since there are 3 persons proceeding in the motorcycle they lost balance and caused the accident. The Hon'ble Supreme court in the case of LAKSHMICHAND (supra) has held that in order to avoid liability, the Insurance Company must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner of the vehicle and such burden of proof would rest on the Insurance Company. Just because the motorcycle was carrying two pillion riders, it will not amount to negligence unless respondent proves contrary. In view of the above, the finding of the Tribunal that the insurance company is not liable to pay the compensation is unsustainable.
Re.quantum:
11. Due to the accident the claimant suffered the following injuries:
12
(1) Concussive head injury and a cut lacerated wound on left ear 3 x 2 and a small cut on chin.
(2) Tenderness over right hand, x-ray showed fracture of base of metacarpal bone.
(3) Abrasion over left heel of right leg.
Even though he has examined the doctor, but the said doctor is not the doctor who treated him. The Tribunal after considering the evidence of the parties and taking into consideration the materials available on record has rightly granted just and reasonable compensation.
12. Accordingly, both the appeals are disposed of. The insurance company is directed to deposit the entire compensation amount along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of 13 four weeks from the date of receipt of a copy of this order. The amount so deposited shall be released to the claimant, after verifying his identity.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit before this Court shall be transmitted to the Tribunal, forthwith.
Sd/-
JUDGE Cm/-